Week 9 - Test 2 Flashcards
6 types of contracts that must be in writing accords to statutes of frauds
- Marriage - promises in anticipation of
- Year - cannot be performed within one
- Land - real estate contracts
- Estate debts - promises by an executor to pay
- Goods over $500 - sales of (UCC rule)
- Suretyship
a promise or order to pay, such as a check; can be passed along like cash (must be in writing per UCC)
negotiable instrument
interest in personal property to secure performance of an obligation; evidence of indebtedness (must be in writing per UCC)
security interest
Courts like to take agreements out of S of F territory. Most courts hold that if the Statute of Frauds is not raised as an (1), or if the party admitted in (2) or (3) that there is an agreement, it is waived. The Statute may not be raised after the contract has been (4) and may not be raised in some cases if (5). (6) may also excuse the need for writing.
- affirmative defense
- court
- court documents
- fully performed
- one party has performed
- Conduct consistent with existence of a contract
Unenforceability due to Statute of Frauds does not preclude enforceability due to (1) and (2)
- quasi-contract
2. promissory estoppel
claims have been abandoned
waived
Written evidence need only amount to an acknowledgment of agreement by the (1). The written evidence does not have to be a (2) or even an (3) of the agreement.
- party “to be charged” (party trying to get out of the contract)
- formal contract
- integrated statement (intended to be complete and final)
agreement used in connection with software licenses; often found on the Internet as part of the installation process of software packages; usually requires the user to manifest assent by clicking “OK” button on a dialog box or pop-up window
click-wrap agreement
agreement in anticipation of marriage that typically involves a promise to convey property when marriage iccurs or concerns division of property in the event of a divorce (must be in writing per S of F)
Prenuptial/antenuptial
The “within a year” requirement does not apply if the contract is (1) within this time, regardless of whether performance is (2) or (3) within a year. Also unimportant is whether performance within a year actually (4). Promises with (5) and promises with (6), on of which can be performed in a year, are not subject to the requirement. The time requirement is also based from time of (7), not from when performance begins.
- performable
- likely
- anticipated
- occurs
- uncertain duration
- alternatives (e.g., restitution per year–but it is possible the person may die within the year)
- agreement (2014 agreement to speak at Yale in 2016–subject to requirement)
5 types of real estate transactions, all of which must be in writing
- real estate sales
- leases
- mortgages
- options on land
- easements (limited right to use real property)
The UCC’s “$500 or more” requirement does not apply to (1).
services
4 exceptions to the UCC’s “$500 or more” requirement
- goods specificlally manufactured for buyer, not suitable for sales to others + seller has made a substantial commitment
- party “trying to get out of it” admits in court agreement was made
- good have been received and accepted
- payment has been accepted
promise to guarantee the debt of another, made without benefit to the party making the promise (must be in writing–covers Estate and Suretyships of MYLEGS)
collateral promise
liable for the payment of another’s debt or the performance of another’s obligation
surety
agrees to be responsible for another’s debt or perofrmance under a contract if the other fails to pay or perform (under a surety)
guarantor
3 possible exceptions to the suretyship writing requirement
- cosigner instead of guarantor (equally liable instead of agreeing only if primary defaults)
- promise to other signer to pay if he can’t (instead of to lender)
- equal benefit or more benefit for guarantor (Dad acts as surety for son on car but uses the car as much as he does)
fail the meet obligations
default
one who participates jointly in borrowing
cosigner
The E in MYLEGS regards someone responsible for carrying on the (1) of another, or the (2) of a deceased person. To take on the deceased’s (3) requires writing under S of F.
- estate
- finances
- debt
one who conducts the business of an estate (3 terms)
- executor
- personal representative
- administrator
the entity for managing finances of a deceased person or an incompetent
estate
guarantees that a contract wil be performed according to its terms and specifications – type of surety (guarantor agrees to complete or to pay penalty for lack of completion)
performance bond
surety agreement that guarantees that a contract will make appropriate, prompt and full payments for lable and material consumed on a project
payment bond
assures a project will remain free of defects in workmanship or materials for a specific period of time
maintenance bond
part of an answer to a complaint in which defendant attempts to limit or excuse liability, based on facts outside those claimed by plaintiff
affirmative defense
The Statute of Frauds was made to prevent (1).
- perjury
Any contract within the scope of the Statute of Frauds may not be (1) unless a (2) is written and signed by the (3).
- enforced
- memorandum (containing important parts of the contract)
- party to be charged (one against whom enforcement is sought) (defendant)
The consequences of non-compliance with the Statute of Frauds is (1), NOT (2)!
- unenforceability
2. invalidity
What was the ruling in the engagement ring/bounced check on CoD/click-wrap done by clerk example?
Contract unenforceable. Click-wrap = signing of contract, and this was not done by the consumer.
When an email settlement was conducted by attorneys in the land dispute and the party challenged this settlement on the grounds of SoF, what was the ruling?
Yes to SoF because land. Yes enforceable because email signatures sufficed.
The SoF is no longer in effect in its place of origin, (1), but remains in effect here everywhere except (2)
- England
2. Louisiana
6 types of contracts under SoF
- Marriage (contracts in consideration of)
- Year (not doable within one)
- Land
- Estate debts (agreement to take on another’s)
- Goods (over $500)
- Suretyship
A (1)–designed to control transfer of property according to statute–is one example of a contract in consideration of marriage that falls under SoF. Another common example is (2), but to fall under SoF the promise must be made to the (3), NOT to (4)
- prenuptial agreement
- exchange of wedding assets
- bride or groom (making the marriage consideration toward the assets)
- each other (making the exchanges consideration for each other and conditional upon the marriage)
automatic transfer of property to spouse, preventing, for example, writing your spouse out of a will–even for property owned before marriage. Prenup seeks to control this.
dower interest
Opposite of dower interest, in a way–marriage owned prior to property is not auto-inherited
community property
Any contract, irrespective of (1), must comply with the SoF if it cannot be (2) within one year of (3). Not applicable if performance within a year is (4), even if (5).
- subject matter
- performed
- execution (signing)
- possible
- unlikely
- Does a contract to take care of a person until death need to be in writing?
- Does a contract to employ someone for life need to be in writing?
- Does a contract to employ someone for two years need to be in writing?
- Does a covenant not to compete for two years need to be in writing?
- No. The person could die within a year, completing the contract.
- No. The person could die within a year, terminating employment and completing the contract.
- Yes. It is not possible to perform two years’ work in one year.
- No. The person could die within a year, ending the contract (any ability to compete).
The L part of MYLEGS applies both the (1) and to (2)
- sales of land
2. disposal of interest (easements, etc.)
A deed does not have to be in writing under (1), but it does under (2).
- Statute of Frauds
2. property laws (for tracking chain of title)
What is the difference between a suretyship, which falls under SoF, and co-signing?
A suretyship is a guarantee to take on someone else’s debt only if the primary signer defaults and all remedies have been exhausted against him. In co-signing, both signers are liable and responsible for paying if the other doesn’t.
To fall under the SoF, a suretyship must be promised to the (1), NOT the (2). The SoF also does not apply if the guarantor promises to be (3).
- creditor
- debtor
- primarily liable (send me the bill for his car)
a type of insurance policy in which the bonding company pays and then pursues the deadbeat debtor
bond
if party does not perform according to contract, someone else will be brought in to finish/repair and the bond will pay for that
performance bond
a person needing a service (e.g., a house built) and uses a single contractor to coordinate–some of the sub-work may not be under his control (e.g., plumbing), but this ensure payment to the subcontractors to avoid them coming after the owner for a mechanic’s lien. In other words, this releases that lien.
payment bond
warranty on a product to guaranty workmanship (e.g., promise to replace a faulty appliance)
maintenance bond
Does a book marked down to $450 from an original price of $900 fall under the SoF, requiring a contract in writing to be enforceable?
No. The marked-down price is under the $500 SoF threshold.
Despite the L part of MYLEGS, (1) only have to be in writing if they are longer than a year
leases
4 thigns needed to satisfy the “in writing” necessity under SoF
- reasonably identify parties and subject of contract
- indicate a contract has been made between the parties
- state with reasonable certainty the material or essential terms of the contract (no ambiguity)
- be signed by or on behalf of the party to be charged
5 things that can satisfy te “signature” necessity under SoF
- printed signature
- typed signature
- actual signature
- initials
- X
It is immaterial for the party (1) to have signed the contract under SoF
seeking enforcement
Generally the signature can appear (1) on the memorandum, though some statutes require it to be (2).
- anywhere
2. subscribed (at bottom; nothing afterward)
Courts (1) the SoF wherever possible; many require it to be pled as an (2) or else it is (3). (4) to a contract may fall under SoF even if the actual contract does not.
- avoid
- affirmative defense
- waived
- Modification
The SoF applies only to (1) contracts.
executory
The equivalent of promissory estoppel with regard to the SoF–one party relied on the unenforceable promise to his or her detriment
“unconscionable injury”
